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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
)
) File Number EB-99080311
)
WCMQ LICENSING, INC.1 NAL/Acct. No. x32080014
) )
)
Licensee of Station WCMQ-FM
)
)
Hialeah, Florida
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: May 5, 2000 Released: May 8,
2000
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that WCMQ Licensing, Inc. (``WLI'') has
apparently violated Section 73.1206 of the Commission's rules,2
by broadcasting a live telephone conversation without first
informing the party to the conversation of its intention to do
so. We conclude that WLI is apparently liable for a forfeiture
in the amount of four thousand dollars ($4,000).
II. BACKGROUND
2. On August 2, 1999, Ms. Clara Macareno sent a complaint
to the Commission directed against Station WCMQ-FM, Hialeah,
Florida. Ms. Macareno alleged that on July 30, 1999, the station
called her home intending to reach her husband's plumbing
company, but instead reached Ms. Macareno's ten-year old
daughter. The station's employee allegedly engaged Ms.
Macareno's daughter in conversation that was indecent, and which
was broadcast without first notifying her of the station's
intention to do so. In response to a letter of inquiry from
Bureau staff dated October 15, 1999, WLI admits that the call
took place, and that no advance notice was given before its
broadcast. Furthermore, WLI does not claim that there were any
underlying circumstances that would have led Ms. Macareno's
daughter to believe that her conversation was being or would be
broadcast. However, WLI disputes Ms. Macareno's contention that
the broadcast telephone conversation was indecent. The licensee
also claims that the broadcast telephone conversation was an
isolated lapse on the part of one of its employees, and that the
station has since adopted new procedures that will prevent a
recurrence of similar incidents.
III. DISCUSSION
3. Section 73.1206 of the Commission's rules,3 provides,
in pertinent part, that before recording a telephone conversation
for broadcasting or broadcasting such a conversation
simultaneously with its occurrence, a licensee shall inform any
party to the call of its intention to broadcast the conversation.
4. In this case, WLI clearly violated Section 73.1206 of
the Commission's rules by calling Ms. Macareno's daughter and
broadcasting the conversation without giving her prior notice of
its intent to broadcast such conversation. Section 503(b) of the
Communications Act of 1934, as amended (``the Act''),4 and
Section 1.80(a) of the Commission's rules,5 each provide that any
person who willfully or repeatedly fails to comply with the
provisions of the Communications Act or the Commission's rules
shall be liable for a forfeiture penalty. For purposes of
Section 503(b) of the Act, the term ``willful'' means that the
violator knew that it was taking the action in question, without
regard to whether it had the specific intent to violate the
Commission's rules. See Southern California Broadcasting Co., 6
FCC Rcd 4387, 4387-88 (1991).
5. Based on the evidence before us, we find that WLI's
broadcast of an exchange between its employee and Ms. Macareno's
daughter on July 30, 1999, is a willful violation of Section
73.1206 of the Commission's rules.6 The Commission's Forfeiture
Policy Statement7 sets a base forfeiture amount of $4,000 for the
unauthorized broadcast of a telephone conversation. We have
reviewed WLI's response to our letter of inquiry, and we find no
basis for decreasing the instant penalty from the base forfeiture
amount. In this connection, although WLI asserts that it has
adopted ``new procedures'' to prevent the recurrence of similar
incidents, it has neither documented nor detailed those measures,
nor explained why its efforts in this regard warrant
consideration as a mitigating factor. In sum, we believe that
the nature of the apparent violation requires the imposition of
the base monetary forfeiture.8
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Communications Act of 1934, as amended,9 and
Sections 0.111, 0.311 and 1.80 of the Commission's rules,10 WCMQ
Licensing, Inc. is hereby NOTIFIED of its APPARENT LIABILITY FOR
A FORFEITURE in the amount of four thousand dollars ($4,000.00)
for violating Section 73.1206 of the Commission's rules,11 which
prohibits broadcasters from airing telephone conversations
without first informing the parties to such conversations of
their intention to do so.
7. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80
of the Commission's rules,12 within thirty days of the RELEASE
DATE of this NOTICE OF APPARENT LIABILITY, WCMQ Licensing, Inc.
SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
proposed forfeiture.
8. Payment of the forfeiture may be made by credit card
through the Commission's Credit and Debt Management Center at
(202) 418-1995 or by mailing a check or similar instrument,
payable to the order of the Federal Communications Commission, to
the Forfeiture Collection Section, Finance Branch, Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. The payment should note the NAL/Acct. No. referenced
above.
9. The response, if any, must be mailed to Charles W.
Kelley, Chief, Investigations and Hearings Division, Enforcement
Bureau, Federal Communications Commission, 445 Twelfth Street,
S.W., Room 3 B-443, Washington, D.C., and MUST INCLUDE the file
number listed above.
10. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested to the licensee's counsel of record, Allan G.
Moskowitz, Esq., Kaye, Scholer, Fierman, Hays & Handler, LLP, 901
Fifteenth Street, N.W., Suite 1100, Washington, D.C. 20035-2327.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 Under File No. BALH-19991007AAF, the Commission granted a
pro forma application for assignment of the station's license
from Spanish Broadcasting System of Florida, Inc. to WCMQ
Licensing, Inc., on October 27, 1999.
2 47 C.F.R § 73.1206.
3 47 C.F.R. § 73.1206.
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80(a).
6 We note that the statute requires only that the conduct in
question, in order to be sanctionable, be either ``willful'' or
``repeated,'' not both. See 47 U.S.C. §503(b)(1)(B).
7 See Report and Order, In re the Commission's Forfeiture
Policy Statement and Amendment of Section 1.80 of the
Commission's Rules, 12 FCC Rcd 17087 (1997), recon. denied, 15
FCC Rcd 303 (1999).
8 Although the complainant contends that the broadcast was
also indecent she has provided insufficient evidence to support
this claim. Specifically, the complainant has failed to provide
either a tape recording or a transcript of the broadcast which
would provide sufficient context in terms of language or wording
used to enable us to determine whether the language meets the
Commission's definition of indecency. Accordingly, we are unable
to address the contention.
9 47 U.S.C. § 503(b).
10 47 C.F.R. §§ 0.111, 0.311, 1.80.
11 47 C.F.R. § 73.1206.
12 47 C.F.R. § 1.80.